Doctors' Body Launches Month-Long Campaign to Protest Against Criminal Prosecution of Doctors under Bharatiya Nyaya Sanhita
Compulsory Rural Service
New Delhi: Amid the concerns and opposition of the medical fraternity against the newly implemented Bharatiya Nyaya Sanhita (BNS) and its provision that made jail term mandatory for doctors found guilty of medical negligence, the doctors have now launched a month-long nationwide campaign.
The month-long campaign by the Indian Medical Association (IMA) will be held from this month of July to August. Through this campaign, the association has urged the Government to put a stop to the criminal prosecution of doctors by terming it "injustice". Further, IMA has also demanded a stop to violence against doctors.
This campaign of the association will culminate with the submission of a memorandum to Prime Minister and Home Minister Amit Shah, ETV Bharat has reported.
Bharatiya Nyaya Sanhita (BNS), which replaced the erstwhile Indian Penal Code, came into force on Doctor's Day i.e. on July 1st, 2024. However, the new laws that replaced the Indian Penal Code (IPC) are being opposed by the medical fraternity as many junior and senior doctors have expressed discontent over a specific section in the BNS.
Doctors are upset over the fact that the new rules have made it mandatory for doctors to serve jail term if they are found guilty of negligence not amounting to culpable homicide.
Punishment for medical negligence by doctors in terms of imprisonment was not mandatory previously under Section 304A of the Indian Penal Code (IPC). Under the Indian Penal Code, doctors were imposed a fine or a jail term extending up to two years.
As per IPC 304A, medical negligence was a cognisable offence and doctors could be "punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both" for causing the death of any person "by doing any rash or negligent act not amounting to culpable homicide."
However, IPC 304A has now been replaced with Section 106 of the final BNS Act. It states that "Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine."
Opposing the criminal prosecution of doctors, IMA has now initiated a month-long campaign. Taking to X (formerly Twitter), the association mentioned, "Criminal prosecution of doctors for medical accidents is injustice". It further added that violence against doctors is also injustice and announced initiating a National-wide campaign in July and August.
Commenting on the matter, the President of IMA, Dr. RV Ashokan told ETV Bharat, "During the month-long agitational programme, IMA members of all State branches will meet the newly elected MPs from their region to get their attention over our legitimate demands."
Referring to section 106(1) of BNS, he added, "IMA stands by its policy that in the absence of mens rea (criminal intent) doctors can be held responsible only in civil law (Law of Torts). Accordingly, IMA is committed to work towards exempting the doctors from criminal prosecution."
"IMA stands by its policy that in the absence of mens rea (criminal intent) doctors can be held responsible only in civil law (Law of Torts). Accordingly, IMA is committed to work towards exempting the doctors from criminal prosecution," said Dr. Ashokan.
He also informed the Daily that the association had submitted its proposals to the Parliamentary Standing Committee on BNS on September 11 last year. Subsequently, the association also met several MPs in this direction.
As per IMA, the cases of alleged medical negligence should first be registered under Section 26 of BNS that states "A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z’s death, and intending, in good faith, Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence."
The association urged that an order from the PMO providing further clarifications on the provisions under Section 26 should be issued for the benefit of the investigating officers.
Dr. Ashokan also referred to the instances of violence against doctors and hospitals and added that the situation has reached epidemic proportions. He told the Daily, "The central Government had initiated a Bill on violence on doctors and hospitals. It was even put up for public comments. However, the Bill is yet to be introduced in the Parliament."
He further mentioned that the central Government also protected the doctors during the mindless violence during the COVID by amending the Epidemic Diseases Act of 1897 and added, "A central law in statute on attacks on doctors and hospitals will be a deterrent and would strengthen the lameduck state legislations. Hardly any conviction has happened in spite of numerous violent incidents."
The issue was also raised by the Indian Medical Association (IMA) in its letter directed to Prime Minister Narendra Modi. Writing to the PM on 29.06.2024, the association pointed out that "there is no criminal intent (mens rhea) on the part of the doctor while treating a patient. There is no negligence to attract criminal prosecution."
IMA also referred to the fact that the Union Home Minister Amit Shah had also acknowledged in the Parliament that death during treatment is not murder. Medical Dialogues had earlier reported that addressing the winter session of Lok Sabha, the Home Minister had said, "Currently, if there is a death due to negligence of a doctor, it is also treated as criminal negligence, almost akin to murder. Hence, I will bring an official amendment now to free the doctors from this criminal negligence."
However, despite the promise of the Union Home Minister, the new BNS legislation has not decriminalised medical negligence. Referring to this, IMA mentioned in its letter directed to the Prime Minister, "The new BNS legislation brought up by your Government reflects on this aspect in section 26. IMA kindly request the Government that the investigating officer invoke this provision in cases of alleged medical negligence. In the rarest of rare cases which might be considered as recklessness the investigating officer may prefer the case to an expert committee for opinion. Some state Governments have a circular memorandum putting in place a district level body under the DMO and a state level appellate body under the DHS. High courts have upheld the legality of the procedure as well. A circular memorandum of procedure from the Union Government in this regard would remove the Democles’ sword hanging over the doctors. It will provide legitimate protection and facilitate crucial decisions in critical moments. This would actually benefit the patients."
